Presented by

Joan Braun, L.L.B., M.S.W.Teresa Mitchell, L.L.B.

Lesley Conley, Program Coordinator

Centre for Public Legal Education Alberta www.cplea.ca

Canada Anti-Spam Legislation (CASL)

Cloudy with a Chance of Spam

June 18, 2014St. John’s Institute, Edmonton, AB

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Centre for Public Legal Education Alberta (CPLEA)

Introductions

Who Are We?

What Do We Do?

CPLEA uses a collaborative approach to develop materials and strategies for teaching people about the law.

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Goals for Today

1. To Gain a Basic Understanding of CASL

2. Learn about Tips and Tools to Prepare

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Outline

1. Overview of CASL

2. Website and Resourceswww.law-faqs.org/wiki/index.php/Canada_Anti-Spam_CASL

3. What’s next

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What is CASL?

Overview

General intent of the legislation

Wide-ranging coverage

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Commercial Electronic Messages

What is a CEM?

Transaction or act of a commercial character

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Key Provisions

Exceptions for Registered Charities

Consent – Express & Implied

Existing Business & Non-Business Relationships

Dealing with Third Parties

Subscribe & Unsubscribe Mechanisms

Tracking (options)

Automated Message Systems

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Exception for Registered Charities

What do the regulations say…..

Raising funds vs. Fundraising

IMPORTANT: This exception does not apply to Not-for-Profits or Registered Amateur Athletic Associations.

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What is permissible.... Soliciting donations

Tickets to dinners / golf tournaments & other fundraising events

Lotteries

Fun runs, etc.

Promoting events by arts & culture groups through ticket sales

Promoting charitable events even if on a cost-recovery basis

Newsletters that promote fundraising events, even if they list

corporate sponsors

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Consent

Express Consent

Implied Consent

What’s excluded …..

Consent is the key concept to be aware of in CASL

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Express consent (Gold Standard)

Recipient must voluntarily agree to receive CEM

Consent can be verbal or written

Must be documented

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Implied Consent

Can be implied in three situations:

where there is an existing business relationship, or an existing non-business relationship

where the recipient has “conspicuously published” their electronic address

where the recipient has disclosed their electronic address to the person who is sending the message;

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Prescribed Information

SENDER of a CEM must:

Clearly indentify self

Clearly state the purpose of the CEM

Give contact information

State that consent can be withdrawn at any time

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Existing Non-Business RelationshipsRegistered Charities & NFPs

An organization has an existing non-business relationship with a recipient if the recipient has, within the previous two years:

In the case of a registered charity – made a donation or gift, or has performed volunteer work for the charity

In the case of a not-for-profit - has been a member of the organization, such as a club or association.

Each time that a recipient makes a donation or gift, or volunteers, the two-year implied consent period begins again.

It is the same case for not-for-profits. Each time a member renews, the two-year implied consent period begins again.

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Existing Business Relationship

purchased, leased or bartered a produce, goods, services, land or an interest in land from the sender;

accepted a business, investment or gaming opportunity offered by the sender;

entered into a written contract or made inquiries about other matters with the sender for another matter not listed above;

within the previous six months, made an inquiry or an application about any of the matters listed above.

……… more

An existing business relationship between the sender of the CEM and the recipient will be found if, within the previous two years the recipient has:

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Existing Business Relationship

The existing business relationship is renewed with each transaction, in that the two-year existing business relationship starts over.

Rolling time frame….

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Existing Non-Business RelationshipExcluded CEMs (Part 1)

There are a number of CEMs to which CASL does not apply.

These include messages sent:

to someone with whom the sender has a personal or family relationship;

to someone in a commercial activity making an inquiry or application about the activity, such as quotes or estimates;

to another employee, representative, consultant or franchisee of an organization about the activities of the organization;

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Existing Non-Business (excluded CEMs cont’d)

to an employee, representative, consultant or franchisee of another organization, if the organizations have a relationship and the message is about the activities of the receiving organization;

in response to a request, question or complaint, or is otherwise initiated by the recipient;

by or on behalf of a registered charity and the message has as its primary objective raising funds for the charity;

by or on behalf of a political party or a political candidate for publicly elected office, for the primary purpose of obtaining a donation or contribution.

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Excluded CEMs (Part 2)

There is another type of CEM which is excluded from the provisions of CASL. There are two requirements for CEMs that fall under this exception:

1. They must conform to the rules about providing sender identity information

and …

2. They must have an unsubscribe mechanism so that the recipient can opt not to receive future CEMs

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Excluded CEMs (Part 2)(cont’d)

facilitate, complete or confirm a commercial transaction that the recipient previously agreed to enter into with the sender;

provide warranty, product recall or safety and security information about a product or service that the recipient has used or purchased;

provide product, goods or services updates or upgrades that the recipient is entitled to receive;

provide ongoing information about a subscription, loan, membership or account that the recipient is currently participating or enrolled in;

provide information directly related to an employment relationship or benefit plan in which the recipient is involved or enrolled.

These messages must solely:

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Third Parties Referrals

an existing business relationship; an existing non-business relationship; a personal relationship; or family relationship with the individual who sends

the message as well as these relationships with the individual to whom the message is sent.

Limited exemption for 3rd party referrals following a referral by someone who has:

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Third Party Referral Messages

CEM Requirements

must disclose the full name of the individual or individuals who made the referral and state that the message is sent as a result of the referral

must also comply with the sender identity information and unsubscribe mechanism requirements.

Only one 3rd party referral message may be sent under these terms, so it should contain a request for future consent.

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Relationships with 3rd Parties

Be aware of what contracts are in place in which the 3rd party may be sending CEMs on your organizations behalf

Examples:

Advertising agencies Social media management Sales or distribution agents Lobbyists, public relations or media advisors Professional fundraising companies Suppliers of referral / contact lists

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3rd Party Relationships –Key Issues

Review all contracts:

Make sure that any CEMs sent on your organization’s behalf are CASL compliant

Contracts should contain clauses that ensure that the service provider will meet all applicable CASL requirements, and will notify you if it is cited by CRTC for a violation

Ensure service provider will keep your organization indemnified for any costs or damages arising out of a breach.

You should also ask your service provider to inform your organization of all unsubscribe requests and to keep records of CASL compliance.

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Acceptable Subscribe Mechanisms

Checking a box to indicate consent

Typing an email address into a field to indicate consent

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Not Acceptable

An example of toggling that assumes consent

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Acceptable wording for Unsubscribe Request

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Unsubscribe Mechanism

Simple, easy & quick

Free

Means to contact the sender must be operational for at least 60 days

Cannot use a “pre-checked” box (toggle box)

An unsubscribe request must be acted on within 10 business days.

Examples ….

Every CEM must provide a way for recipients to unsubscribe

One of the most important components of the CASL scheme.

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TrackingTracking should cover:

express consents; implied consents; conversion of implied consents to express

consents; and implementation of unsubscribe requests

and the date it was done.

For an example of a simple spreadsheet to track CEMs, see the Sample Tracking Spreadsheet under Tips and Tools.

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Automated Message Systems

High Tech / Low Tech

Benefits / Advantages

Cost - variety of factors come into play

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The Regulators

CRTC

Competition Bureau

Privacy Commission

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Penalties

Administrative Monetary Penalties ( AMPs)

Vicarious Liability

Private right of action – After July 1, 2017

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Timelines

July 1, 2014 – CASL in effect (for the most part)

If you had an existing business relationship or non existing non-business relationship before CASL came into effect your organization can rely on implied consent for the 3 year transition period…

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Timelines (cont’d)

Between July 1, 2014 and July 1, 2016

If transaction, volunteering, or donation takes place this restarts the 2 year window for implied consent

July 1, 2017

Private rights of action 3-year transition period for changing over - consents ends

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Definitions

CPLEA - CASL website

Legislation

Industry Canada

Imagine Canada – listed under additional resources

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FAQs

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Tips and Tools to help…

Top Ten Tips CASL Initial Compliance Questionnaire Registered Charity Decision Tree Not-for-Profit Decision Tree Sample Tracking Spreadsheet Timelines Checklist Information and Resources for Not-for-Profits and

Registered Charities (Booklet, PDF 30 p.)

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Additional Resources

Government of CanadaUpdates: http://fightspam.gc.ca/eic/site/030.nsf/eng/00199.html

Non-Profit Sector

Law Firms

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Thank you!

For further information or training, contact us at:

info@cplea.ca

CASL for Charities and NFPs